Baygold Associates, Inc. v. Congregation Yetev Lev of Monsey, Inc.

• Decision Date: 15 February 2011
• Citation: Baygold Associates, Inc. v. Congregation Yetev Lev of Monsey, Inc., 916 N.Y.S.2d 639, 81 A.D.3d 763 (N.Y. App. Div. 2011)
• Parties: BAYGOLD ASSOCIATES, INC., appellant-respondent, v. CONGREGATION YETEV LEV OF MONSEY, INC., respondent. (Action No. 1) Monsey Park Home for Adults, appellant-respondent, v. Israel Orzel, respondent-appellant, et al., defendants. (Action No. 2).
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 639

81 A.D.3d 763

BAYGOLD ASSOCIATES, INC., appellant-respondent,

v.CONGREGATION YETEV LEV OF MONSEY, INC., respondent. (Action No. 1)

Monsey Park Home for Adults, appellant-respondent,

v.Israel Orzel, respondent-appellant, et al., defendants. (Action No. 2).

Supreme Court, Appellate Division, Second Department, New York.

Feb. 15, 2011.

Maizes & Maizes, LLP, Bronx, N.Y. (Michael H. Maizes of counsel), for appellants-respondents.

Ostrer Rosenwaser, LLP (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In two related actions, inter alia, to recover damages for fraud and for a judgment declaring, in effect, that a lease was renewed pursuant to its terms, the plaintiff in Action No. 1, Baygold Associates, Inc., and the plaintiff in Action No. 2, Monsey Park Home for Adults, appeal from (1) a decision of the Supreme Court, Rockland County (Weiner, J.), dated March 10, 2010, and (2) a judgment of the same court dated May 3, 2010, which, upon the decision, and after a nonjury trial, dismissed the complaint in Action No. 1 and declared that Baygold Associates, Inc., (a) did not renew its lease for the subject premises, (b) that its lease, and any sub-leases thereunder, expired on September 30, 2007, and (c) that it had no contractual or possessory interest in the subject premises, other than that arising from a month-to-month tenancy, and the defendant in Action No.2, Israel Orzel, cross-appeals from the decision.

ORDERED that the appeal and cross appeal from the decision are dismissed, as no appeal lies from a decision ( see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 509-510, 472 N.Y.S.2d 718), and, in any event, the cross appeal must also be dismissed as abandoned; and it is further, ORDERED that the appeal by the plaintiff in Action No. 2 from the judgment is dismissed, as it is not aggrieved by the judgment ( see CPLR 5511); and it is further,

ORDERED that the judgment is affirmed insofar as appealed from by the plaintiff in Action No. 1; and it is further,

ORDERED that one bill of costs is awarded to the defendant in Action No. 1, Congregation Yetev Lev of Monsey, Inc., payable by the plaintiff in Action No. 1, Baygold Associates, Inc.

Baygold Associates, Inc. (hereinafter Baygold), entered into a lease with the owner of the subject premises, Monsey Park Hotel, Inc. (hereinafter the landlord). Pursuant to the lease, Baygold was required to give notice of its intention to renew the lease by certified mail, return receipt requested, to the landlord.

" 'As this case was tried to the court, without a jury, this Court's power to review the evidence is as broad as that of the trial court, with appropriate regard given to the decision of the trial judge who was in a position to assess the credibility of the witnesses' " ( Corner Assoc. Holdings, LLC v. H.V.K. Realty Holding Co., 63 A.D.3d 774, 775, 880 N.Y.S.2d 712, quoting Singh v. Atakhanian, 31 A.D.3d 425, 426, 818 N.Y.S.2d 524 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Bubba's Bagels of Wesley Hills, Inc. v. Bergstol, 18 A.D.3d 411, 412, 794 N.Y.S.2d 443).

Here, the record supports the Supreme Court's determination that the tenant Baygold Associates, Inc. (hereinafter Baygold), failed to establish its compliance with the provision in the subject lease requiring that notice of the intent to renew the lease be given by certified mail, return receipt requested to the landlord. The "pre-bill worksheet" prepared by Baygold's attorney did not contain an entry reflecting that the renewal notice was ever sent. In addition, Baygold's attorney testified that although it was his custom and practice to maintain the receipt for certified mailings, he did not...